While the president has been a regular dispenser of clemency to fowl, he has not been so generous to humans. It is time for that disjuncture to end.

As ProPublica journalist Dafna Linzer pointed out earlier this month, President Obama has granted clemency more rarely than any modern president. This is particularly striking when considering commutations, or the power to lessen a sentence while maintaining the underlying conviction (a pardon wipes out the conviction). According to Linzer's calculations, "under Reagan and Clinton, applicants for commutations had a 1 in 100 chance of success. Under George W. Bush, that fell to a little less than 1 in 1,000. Under Obama, an applicant's chance is slightly less than 1 in 5,000."

The founding fathers did not intend for the pardon power to fall into such disuse. As the framers made clear, this vestigial power of kings is rooted in policy concerns that ring very true today. Alexander Hamilton, in Federalist 74, argued that "the criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."

Our federal system of criminal law has, of late, been "too sanguinary and cruel." For example, thousands of federal prisoners still languish under long sentences doled out under the now-amended 100-to-1 ratio between powder and crack cocaine that was built into the federal statutes and sentencing guidelines. That ratio has been actively rejected by all three branches of government, but the only avenue to relief for those prisoners is commutation. President Obama should look to the approach President Ford employed for draft evaders in 1974: A mass commutation pursuant to a process created to provide careful review of each case.

At the individual level, there are strikingly strong petitions for clemency currently before the president. Since we started the nation's first law school clinic focused on federal commutations here at the University of St. Thomas, we have been deluged with letters asking for help. One was from Weldon Angelos, who was sentenced to 55 years in prison for three small marijuana infractions and the possession of firearms that were neither used nor brandished. He had only one prior conviction, stemming from a juvenile court charge for gun possession.

The Angelos case grew out of a perversion of mandatory minimum sentences embedded in federal statute and the actions of overaggressive prosecutors in Utah. The result was so unfair that the sentencing judge, George W. Bush appointee Paul Cassell, pled for a presidential commutation of the sentence on the very pages of the sentencing opinion, saying that the 55-year term of imprisonment he was forced by statute to issue was "unjust, cruel, and even irrational." Cassell substantiated this by pointing out the types of crimes that would have received a much shorter sentence: hijacking planes, raping children and murder....

For too long, we have filled our prisons with similar minor-league players in the drug game. It might make sense if this had solved a problem, but it hasn't. The billions spent have not bought success at reducing drug use in this country.

A step in the right direction would be to use the pardon power to release those who present the strongest cases and those sentenced under statutes we have now seen fit to amend. In those cases, clemency is more justice than mercy. Instead of a photo op with a turkey, President Obama should begin a Thanksgiving tradition that reaches back to our true origins and our best values.

Comments

Doesn't this same piece, or a close variant thereof, appear every year?

Obama never once campaigned on a platform that he was going to grant more pardons, yet was re-elected (albeit by a significantly diminished margin). Why should he feel any obligation to increase the number of pardons? If, as he has said, the vote was a vindication of his tax and entitlement policies, why is it any less a vindication of his pardon policies, which are much less controversial with the general public?

I concede that pardons are very popular with those who couldn't hoodwink the jury into an erroneous acquittal, or then intimidate the judge into giving a nothing sentence, but the class of such persons if vastly smaller than the general public.

Pardons and commutations are for various reasons and the idea it is only for those who "couldn't hoodwink the jury" etc. is "come on" territory. With the level of punishment in this country, even a tiny fraction here would be a number of people.

"Pardons and commutations are for various reasons and the idea it is only for those who "couldn't hoodwink the jury" etc. is "come on" territory."

Not that I ever said that pardons are "only for" those who couldn't hoodwink the jury, now did I? What I said is that they are POPULAR WITH those who couldn't hoodwink the jury, and you wisely decline to dispute this fact.

P.S. I'm glad to see your (also wise) implicit concession that some defendants do indeed try to hoodwink the jury. 'Bout time.

Posted by: Bill Otis | Nov 21, 2012 10:16:10 AM

hmm

"That ratio has been actively rejected by all three branches of government, but the only avenue to relief for those prisoners is commutation. President Obama should look to the approach President Ford employed for draft evaders in 1974:"

No we don't need any more of these. Look at what happened with this one. We ended up with an unconvicted sex offender and draft dodger extrodinaire.... Bill Clinton.

NO THANKS!

Posted by: rodsmith | Nov 21, 2012 11:21:44 AM

Former prosecutor Mark Osler writes an op-ed encouraging more use of pardons, his "friend" (per Osler's book on the death penalty, listing the blog host as a friend) cites it because of the "frustration" pardons aren't used more, and Bill Otis speaks of who pardons are "popular" with. I'll stop trying to explain what this objectively suggests. The subjective sentiments of some here make such a test somewhat pointless.

As to hoodwinking, each side at times does things of that sort, including some defendants. It is "water is wet" territory and I don't believe I ever denied it.

I think Osler's piece is a home run. One of the best of its kind to appear to date. But agree that its type does appear regularly, around this time of year. There is a reason for that. It is needed.

You see, there are actually persons so misinformed (or less than honest) as to emphasize (for who knows what reason) that pardons are popular for persons who "couldn't hoodwink the jury into an erroneous acquittal, or then intimidate the judge into giving a nothing sentence." It might also be noted that mad scientists are interested in bombs, polygamists in marriage, Ted Bundy was interested in higher education, Charles Manson liked music, etc.

When in fact, as all honest, well-informed people know, the vast (as in 90 plus percent) of acts of executive clemency are pardons granted to persons who have served their time (if they ever had any) and have committed minor offense (usually decades ago). They aren't violent criminals being sprung from prison to rape and pillage. They are law-abiding citizens who have passed FBI checks and simply want their rights restores. And the public does have to be reminded of these people year after after year. Because THEY are interested in pardons too, and they can be easily forgotten by Nixonian cartoon-like misrepresentations of clemency.

How true P.S. Usualy the only ones getting a pardon who's crime isn't 20-30 years in the past are connected to the current politicians

Posted by: rodsmith | Nov 22, 2012 2:10:59 AM

"Intimidate the judge into a nothing sentence " proclaims Bill Otis. It's obvious you have not been in federal court for decades. What a totally ignorant statement..

Posted by: Steve Prof | Nov 22, 2012 4:53:08 PM

Prof. Ruckman --

"And the public does have to be reminded of these people year after after year. Because THEY are interested in pardons too, and they can be easily forgotten by Nixonian cartoon-like misrepresentations of clemency."

What evidence do you have that the public at large is interested in pardons? We just have a months-long national campaign covering all manner of public policy, from Osama to Big Bird, and I do not recall a single mention by either party of pardons, or even of criminal law. Do you know of any?

Executive clemency is your specialty, so of course you are interested in it. And you're interested specifically in getting more of it. But there is not a whisper of any Constitutional right to clemency, and Obama did not campaign on a policy of granting more of it.

Academics, some non-profits, the criminal defense bar and their clients are interested in pardons. The general public isn't, so far as you have given any evidence or I am aware from either the campaign or polling. Why should Obama change any of the policies that he sees as just having been vindicated?

Finally, the universe of those to whom pardons historically have been granted is, as you surely know, very different from the universe of those who want them.

Posted by: Bill Otis | Nov 22, 2012 10:07:47 PM

Bill, simple pronoun reference problem re "THEY" ? Topic is "Who is seeking clemency? Who is interested in it?" And I say we DO need to be reminded of those who have served their time (if they ever had any) and have committed minor offenses (usually decades ago). They aren't violent criminals asking to be sprung from prison to rape and pillage. They are law-abiding citizens who have passed FBI checks and simply want their rights restored.

As for the universe of those who want pardons ... no ... actually I feel pretty certain you know very little about them. Otherwise, do tell (or lead me to the info). I had the distinct impression their applications were secret. I am not aware of an ounce of empirical research re the strength of their applications. But, again, fill me in because I love correction that leads to knowledge. Indeed, I crave it madly!

Look, I am not one to argue there should be more pardoning without a world of qualification. I have no desire whatsoever for non-deserving persons to get pardons. On the other hand, at the level of discussion where you and are (or where I think we are, or should be), I just don't get the insistence on painting pardon seekers as persons who "couldn't hoodwink the jury into an erroneous acquittal, or then intimidate the judge into giving a nothing sentence." Yes, I know you can parse it all out and deny the impression that was clearly made. But, you, I, we can all do better than that.

That reminds me way too much of reporters that I frequently talk to, who want to link every act of clemency to Willie Horton, and want me to respond to "Can't do the time, don't do the crime" blah blah blah.

For Obama's pitiful 22 pardons, the average distance between sentencing and clemency is more than 24 years. On average, the applications took 3 and 1/2 years to go through the DOJ bureaucracy and they waited almost a year in the White House. Over half of them were never even sentenced to prison. The average sentence of those that did serve was just over a year. The average age of the recipients appears to be just over 60 years old.

No, president Obama did not campaign on pardons. But I don't think he campaigned on evaporation of pardons either.

surely the investiture of a pardon should only be for the most discerning of cases. Surely if the President pardoned all and sundry it becomes the norm, why have the courts and judiciary in the may as well send them all to the president in the first place.

"As for the universe of those who want pardons ... no ... actually I feel pretty certain you know very little about them. Otherwise, do tell (or lead me to the info). I had the distinct impression their applications were secret."

I wasn't referring to those who have filed applications for pardons. I was referring to those who WANT pardons, certainly a far larger group.

"Look, I am not one to argue there should be more pardoning without a world of qualification."

That is quite true, and I didn't say or imply otherwise. But there are those calling for, for example, blanket pardons for all inmates sentenced under the former 100:1 crack ratio. There are also those (many on this blog) who condemn the system as generally far too punishment-prone, and who therefore would seem to be committed to a far broader clemency regimen than would result from case-by-case review.

It may well be that pardoning was historically more generous than it has been more recently, but there was never a time, to my knowledge, that it was viewed as a tool for the executive to engage in a wholesale undermining of the results produced by the legislative and judicial branches. It was against such an approach, rather than against yours specifically, that I address my concern.

"No, president Obama did not campaign on pardons. But I don't think he campaigned on evaporation of pardons either."

Just so. He said not a word. There is thus no basis visible to me that he should view his re-election as an occasion to reconsider four years of practice that neither his opponent nor, so far as is known, the electorate, has a bit of problem with.

And just so you'll know, I am viewed in some quarters in this town as being the Rasputin of a prominent exercise of executive clemency a few years ago. So it's not as if I oppose any form of executive clemency. I just think browbeating Obama because he hasn't (yet) been the defense bar's darling on this score is unfair and overdone.

Posted by: Bill Otis | Nov 23, 2012 6:47:10 PM

Bill,

I respectfully disagree. I think Thomas Jefferson fully intended to wholesale undermine the Alien Sedition Act of the Adams administration. He promised to pardon those remaining in prison who were convicted under the Act and, when he won, he did.

My own research has uncovered Woodrow Wilson's aggressive use of the pardon power re drug and alcohol convictions. You will recall he vetoed the Volstead Act and Congress overrode the veto.

But, you know all of this.

I think I could be convinced to sign a petition for a "blanket" pardon of all inmates convicted under the 100:1 ratio if 1) they would be out of prison right this second but for that ratio 2) they were first-time offenders 3) they were young at the time of the offense 4) they have excellent prison records and 5) maybe if there was no evidence of violence in the mix. What about you? Are they still a no-go?

I am aware of your Rasputin-like work in the area of that particular commutation, but I will go to my grave insisting that was the wrong decision for Bush. If there was a legitimate issue, worth appealing, the right thing to do would have been to grant a respite until that appeal. That way, the defendant would not have had to enter prison (as so many were drooling for) and the president would not have had to interfere with the judicial process.

I'm happy to take your expert word for it that two of the forty-three or forty-four Presidents (depending on how you count Cleveland) have used the pardon power to effect a broad-brush undermining of two or three particular acts of Congress. Personally, I think it was a bad idea, much like changing the Constitution to provide successive Presidents with a continuing veto, which is not the way the Framers created the veto power.

Still, let me put those misgivings to one side and assume arguendo that your characterization of Jefferson and Wilson is 100% correct. That would mean that Obama's refusal to follow their lead (most recently undertaken about 100 years ago) puts him in the company of a bit more than 95% of Presidents, who have seen things differently.

One could say harsher things about the current occupant of the White House than that he is in league with 95% of those who came before.

As to your last paragraph, clemency is by definition an interference with the judicial process; indeed, it is precisely for its interference value that the defense bar is so eager to see it exercised. Yes, there are questions of timing, but they are subsidiary; the vast majority of people who wanted clemency for Libby were far more interested in outcome than in timing, as were the vast majority opposed. The latter would have raised the roof if clemency had come months or years later, since the root of their opposition to it had nothing to do with timing and everything to do with Libby's support for the Iraq war, which they detested, and his relationship with Vice President Cheney, whom they destested even more furiously.

Posted by: Bill Otis | Nov 25, 2012 1:09:50 AM

Well, Bill, I wasn't intending to be exhaustive. I was hoping to trigger a chain of recognition. To wit, there are certainly several other examples and it is perhaps not so much that the remaining Presidents saw things "differently" so much as they did not find the need, or find themselves in a circumstance where such behavior was necessary.

But I think the really interesting thing is your idea that clemency is "by definition" an "interference with the judicial process." I guess, as a political scientist, I am still fond of the notion that powers are not so much separated in our system as they are shared. Pardoning to restore civil rights, in my mind, does not "interfere" in any common sense sense of the language. It is simply the executive branch playing the role that it rightfully has in the matter of justice. Likewise, I don't see a respite in order to gather additional / or judge new information an "interference." It is rather an enhancement to the judicial process - assuming it has justice as a goal - even thought it comes from outside the judiciary.

As the evidence of recent years screechingly attests, pardoning (sometimes merely to restore civil rights, and sometimes to do more than that) is a political act undertaken for political reasons, and therefore in no way a part of what is (or should be) the "judicial system."

The judicial system has its last say when the final court review is completed. It is typically (but not always) after then -- usually much after then -- that executive clemency comes into play, as your prior descriptions of it make clear.

Pardon decisions sometimes do, and sometimes do not, partake of factors the judiciary properly could or would take account of. I am not aware of anything even vaguely "judicial" in Bill Clinton's execrable, last-day, midnight pardons of, to name just three, his druggie half-brother Roger, nor of his child-molesting Oxford pal (and Chicago pol) Mel Reynolds, nor of Susan McDougal, who conveniently stonewalled the grand jury in Clinton's behalf. Considerably more worthy, but not at all "judicial" in any recognizable sense, were Carter's blanket pardons of Vietnam era draft dodgers. This was done, so Carter more-or-less credibly claimed, to put the bitterness of the war behind the country. No serious person could conceive of that purpose, however noble, as judicial in character.

I doubt that you would really want to defend the Roger Clinton, Reynolds or McDougal pardons as, to use your phrase, "an enhancement to the judicial process," but I hardly want to pre-empt you if that be your choice. My own view of them is that they were a disgrace, and should (but don't, not on this board) lend at least a little circumspection to the giddy impulse to pardon away.

Posted by: Bill Otis | Nov 25, 2012 4:28:30 PM

I am sorry to report, in keeping with liberal hypocrisy, the pardoned turkey of 2011 was later quietly euthanized. Health costs would have been excessive, according to its death panel. His name? "Peace."